“In Fisher v. Fisher, 2008 ONCA 11, at para. 103, the Court of Appeal states that the SSAGs must be treated as a “significant authority” in determining the quantum of spousal support, and that, if the court is departing from the SSAGs, it must provide an explanation as to why. This is confirmed by Sherr J. in Decker where he suggests that the SSAGs should be adhered to barring “exceptional circumstances”: see para. 28, supra. In Redpath v. Redpath, [2006] B.C.J. No. 1550, 2006 BCCA 338, the court went so far as to indicate that an order of spousal support which falls substantially above or below the suggested range could give rise to an error in law, unless a reasonable explanation was provided for the discrepancy.
Section 12.1 of the SSAGs provides for an exception to utilizing the ranges of support in compelling financial circumstances at the interim stage of a proceeding. The general principle, as outlined in Slongo v. Slongo, 2017 ONCA 272, is that, absent exceptional circumstances, it is standard practice for interim support to be ordered within the Guidelines’ range.
Although the Respondent failed to provide case law to support the awarding of spousal support to address the issue of joint venture income, there is case law to support a departure from the SSAGs under certain circumstances. For example, in Tasman v. Henderson, 2013 ONSC 4377 (Ont. S.C.J.), the court exceeded the amount recommended by the Guidelines (while also disagreeing with the inputs used by the respondent in calculating the range) in their interim award for spousal support on the basis that the SSAGs underestimated the applicant’s needs because of the length of the marriage and the lack of children. It was alleged that the appropriate range was between $600 and $800 per month. The court decided to award $1,500 per month. In Osanlo v. Onghaei, 2012 CarswellOnt 4139, 2012 ONSC 2158, McGee J. departed from the SSAGs but the basis for this was hardship: the children ended up with the husband through what McGee J. described as “high handedness, misadventure or fraud” and the “custodial payor range” SSAG amount was inadequate to permit the wife “an equal opportunity to settle into accommodations suitable for the children.” A review of that case indicates that those circumstances were based upon severe hardship arising from the application of the SSAGs and are therefore not applicable to the present case. In certain cases the interim exception should be invoked in deviating from the SSAGs to do justice between the parties; however, this is not one of those cases.
Courts, have acknowledged, as have the SSAGs themselves, that there may be challenges in inadequately ascertaining precise income figures at the interim stage. Interim support can be adjusted retroactively later at trial if the income figures chosen were incorrect; see Frank v. Linn 2014 SKCA 87 and Stork v. Stork, 2015 ONSC 312.”